As per Hon’ble President Mr. Shekhar P. Muley.
The complainant has filed this complaint u/s 12 of the C.P. Act against Opposite Parties, Pepsico India and two others.
Facts in short that on 16/6/2014 the complainant purchased cold drink,¨ Slice Pure Mango Pleasure Drink¨ having batch No. 274, bar code No. 8902080404117 and manufacturing date 17/2/2014 from OP3. Said cold drink was manufactured by the OP.2 and was being marketed under brand of OP.1 bearing Trade Mark of Pepsico. The complainant found that the said drink was adulterated and contaminated. It had several black coloured foreign particles in the sealed bottle. The foreign particles were visible by normal vision. It is alleged, the OPs 1 & 2 violated product warranty and food safety standards and also committed deficiency in service by manufacturing contaminated soft drink. He then issued legal notice on 21/7/2014 demanding compensation of Rs. 5 lakh, but it was not replied to. Hence, this complaint to claim compensation of Rs. 4 lakh with cost of Rs. 20,000/- from the OPs.
OP1 filed reply at Ex.10 and denied the complaint. It is stated he purchased the bottle of cold drink from OP.3. There was no privity of contract between the complainant this OP. Since the bottle was not opened, its contents were not consumed and so there was no damage. The shelf life of beverage in 1.2 Liter PET bottle is of 6 months. The complaint was filed in September 2014 and till then contents of the bottle were not analyzed nor he applied for sending the bottle tp a laboratory. The bottle in question was not manufactured by this OP; it was only marketed under the brand name of OP.1 by the OP.2. Filling of bottles with beverage is done with elaborate procedure by automatic filling machine. Therefore, there is no possibility of entering any foreign material in any bottle. It is further stated it is easy for anyone to mix spurious bottles with genuine bottles purchased under bill. It has come across many such complaints. Thus, denying the allegations it is submitted to dismiss the complaint with cost.
OP.2 has filed reply at Ex.12 and denied the complainant purchased cold drink having description mentioned in the complaint from the OP 3 on 16/6/2014. It is denied said beverage was manufactured by this OP and marketed by OP.1 under trade name Pepsico. The contents inside the bottle is of 6 months and it is specifically printed on each bottle. The OP.3 is not a distributor of this OP. It is denied the complainant found some foreign material in one bottle and it was supplied by the OP.3. The said bottle was never sent to laboratory for analysis. It is thus prayed to dismiss the complaint.
OP.3 failed to file reply, hence the matter proceeded without its reply.
Heard the counsel for the complainant and OP.1. None appeared for the OP.2 and 3. Perused documents. We record our findings for the reasons given below.
- // FINDINGS AND REASONS // -
Except bill of purchase and notice, no other document is filed by the complainant. From the bill it appears the complainant purchased one quantity of 1.2 Liter PET cold drink Slice from the OP.3 on 16/6/2014. Since the OP.3 did not contest the case, it may be held that the complainant had purchased Slice cold drink bottle from the OP.3. But surprising fact is that for one bottle of cold drink Rs.700/- was paid. It is nowhere disclosed how many bottles were purchased. From the averment and the bill it appears only one bottle was purchased. On perusal of the bill it is noticed that there is no batch number or bar code number printed on it, which is mentioned in the complaint. In other words there is nothing to show that the bill is of the same bottle in question. The OPs 1 and 2 have categorically denied having any concern with the cold drink bottle purchased by the complainant. There is no solid proof that the bottle in question belongs to the OPs. As such, though it may be said that the complainant had purchased one cold drink bottle from the OP.3, yet the complainant could not establish that the bottle in question was purchased from the OP.3 or the bill issued by the OP.3 is in respect of the bottle in question in which foreign particles were found.
Some other facts of the case pertinent to be taken note of are that the bottle was purchased on 16/6/2014, which was manufactured on 17/2/2014. So it was already 4 months old when he purchased it. Presumable, he must have noticed foreign materials in the bottle immediately. But, instead of returning it to the seller, he waited till 21/7/2014 and issued notice to all OPs. The complaint was filed on 20/10/2017. Thus by the time the complaint was filed the bottle in question was more than 3 years old. Even at the time of filing the complaint, he did not produce the bottle before the forum. On 16/1/2016 the complainant made application for sending the bottle in question for analysis of its contents. At that time also the bottle was not produced before the forum. It was ultimately produced on 15/5/2018. Thus the forum could get the chance of examining the bottle only after 4 years from its date of manufacture. Admittedly, every cold drink bottle has limited life and if it is sent for analysis after more than 4 years, public analyst report loose its significance. On similar facts Hon´ble National Commission in Pepsi Foods Pvt. Ltd. v/s National Consumer Protection Research Centre & Othrs, Appeal No. 197 of 2007 (NC) on 13/5/2015 allowed the appeal and dismissed the complaint. One more judgment in M/s Pepsico India Holdings Pvt. Ltd. v/s Hotel Pratap, Revision Petition No. 56 of 2010 (NC), decided on 14/1/2015 is relevant. In that case also there was no cogent evidence that the bottle belongs to the Pepsico India nor was it sent to laboratory.
The complainant has claimed Rs. 5 lakh compensation. This is exorbitant amount considering the cost of the cold drink which was never consumed. He could not explain how he quantified such a huge compensation.
Considering overall averments and the only document, the bill, it is not possible to hold that the bottle belongs to the OPs 1 or 2 and it was purchased from the OP.3. The bill cannot be connected to the bottle in question. Besides, when the bottle was produced before the forum it was more than 4 years old when life of cold drink is only of few months. Therefore, in our considered view, the complainant has failed to prove his case. In the result, following order is passed.
- The complaint is dismissed.
- No order as to cost.
- Copy of the order be given to both parties, free of cost.
